Francisco Javier OROZCO-BORBOA, Petitioner-Appellant, v. UNITED STATES of America; et al., Respondents-Appellees, 255 F. App'x 247

MEMORANDUM Federal prisoner Francisco Javier Orozco-Borboa appeals pro se from the district court’s judgment dismissing his habeas petition under 28 U.S.C. § 2241. We have jurisdiction under 28 U.S.C. § 1291. On January 25, 2007, a motions panel of this court certified for appeal the issue of whether “the district court erred in re-characterizing appellant’s 28 U.S.C. § 2241 petition as an initial 28 U.S.C. § 2255 motion.” Upon further review of the record, we conclude that the district court did not, in fact, so recharacterize appellant’s petition.

Hence we vacate the certificate of appealability previously granted. Because we therefore lack subject-matter jurisdiction, we dismiss the appeal. See 28 U.S.C. § 2253(c)(2); Phelps v. Alameda, 366 F.3d 722, 730-31 (9th Cir.2004). DISMISSED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.